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Tapes' Destruction Hovers Over Detainee Cases

by

Mark Mazzetti and Scott Shane

WASHINGTON - When officers from the Central Intelligence Agency destroyed hundreds of hours of videotapes documenting harsh interrogations in 2005, they may have believed they were freeing the government and themselves from potentially serious legal trouble.

But nearly four months after the disclosure that the tapes were destroyed, the list of legal entanglements for the C.I.A., the Defense Department and other agencies is only growing longer. In addition to criminal and Congressional investigations of the tapes' destruction, the government is fighting off challenges in several major terrorism cases and a raft of prisoners' legal claims that it may have destroyed evidence.

"They thought they were saving themselves from legal scrutiny, as well as possible danger from Al Qaeda if the tapes became public," said Frederick P. Hitz, a former C.I.A. officer and the agency's inspector general from 1990 to 1998, speaking of agency officials who favored eliminating the tapes. "Unknowingly, perhaps, they may have created even more problems for themselves."

In a suit brought by Hani Abdullah, a Yemeni prisoner at Guantánamo Bay, Cuba, a federal judge has raised the possibility that, by destroying the tapes, the C.I.A. violated a court order to preserve all evidence relevant to the prisoner. In at least 12 other lawsuits, lawyers for prisoners at Guantánamo and elsewhere have filed legal challenges citing the C.I.A. tapes' destruction, said David H. Remes, a Washington lawyer representing 16 prisoners.

"This is like any other cover-up," Mr. Remes said. "We've only scratched the surface."

Plans for the possible prosecution of another prisoner, Ali al-Marri, who has been held since 2003 in a naval brig in Charleston, S.C., could be in jeopardy after the Pentagon recently revealed that it had destroyed some tapes of Mr. Marri's interrogation. Other tapes showing rough treatment of Mr. Marri, which were discovered in a Pentagon review ordered after the C.I.A. revelations and have been preserved, could prove embarrassing if presented at his trial.

The destruction of tapes has also prompted challenges from lawyers for Zacharias Moussaoui, the convicted Qaeda operative who had unsuccessfully sought testimony at his trial from Abu Zubaydah, one of the two Qaeda suspects whose interrogation videotapes were destroyed in November 2005. At that time, a defense motion seeking records of Abu Zubaydah's interrogation was pending before a federal court in Virginia.

This motion in the Moussaoui case, among other legal challenges, has raised questions about a statement in December by the C.I.A. director, Gen. Michael V. Hayden, that he understood the tapes were destroyed only after it was determined that they were "not relevant to any internal, legislative, or judicial inquiries."

A C.I.A. spokesman, Paul Gimigliano, said General Hayden "certainly stands by his statement." He added: "The C.I.A. has been cooperating with the Department of Justice, the courts and the Congress. The reviews of this matter are not complete, and it is only fair to let them conclude before trying to draw conclusions from them or about them."

Officially, the C.I.A. has said that the tapes were destroyed primarily because of concerns that their public exposure could endanger the safety of C.I.A. officers. But in interviews in recent months with several officers involved in the decision, they said that a primary factor was the legal risks that officers shown on the tape might face.

Lawyers involved in the cases said it still appeared unlikely that a terrorist suspect could go free as a result of the destruction of the videotapes. But they said that judges might decide to exclude evidence in some of the cases, potentially undermining the government's position and jeopardizing future prosecutions.

All of the court challenges are playing out against the backdrop of the criminal investigation, led by a veteran prosecutor, John H. Durham, who is examining whether destruction of the tapes was an illegal obstruction of justice. A separate investigation by the House Intelligence Committee will soon begin interviewing officials from the White House and the C.I.A., possibly under subpoena, about their roles in the destruction of the tapes.

Congressional officials said that among the White House officials they intend to interview are David S. Addington, chief counsel for Vice President Dick Cheney, and former Attorney General Alberto R. Gonzales. The list of current and former C.I.A. officials includes the former C.I.A. directors George J. Tenet and Porter J. Goss as well as several C.I.A. lawyers who gave legal advice about the tapes.

Little is known about the progress of the criminal investigation led by Mr. Durham. But his team has interviewed members of the Sept. 11 commission, including Philip D. Zelikow, the panel's former executive director, as part of an inquiry into whether the C.I.A. broke the law by withholding the tapes from the commission.

Mr. Hitz, the former C.I.A. inspector general, said the government's legal woes could be traced to what he believed was an unwise decision to use harsh physical pressure during interrogations. Those techniques had Justice Department approval. But a public backlash set in, which was a factor in the C.I.A.'s decision to destroy the tapes in late 2005.

By then, the C.I.A.'s secret detention program was tied up in a complex web of legal claims and counterclaims.

Beyond that, Mr. Durham, the prosecutor, has found 17 court orders in 21 lawsuits that required preservation of evidence, and he has said in court papers that his team is investigating whether the tapes' destruction violated those orders.

One of the court orders, issued in July 2005 by Judge Richard W. Roberts of the Federal District Court in Washington, required the preservation of all evidence related to Hani Abdullah, the Yemeni prisoner at Guantánamo, who is accused of attending a Qaeda training camp in 2001 and other offenses. Judge Roberts said in a January order that Mr. Abdullah's lawyers had made a plausible case that Abu Zubaydah would have been asked about their client in interrogations.

Mr. Abdullah's lawyers, who are challenging his detention as an enemy combatant, assert that the tapes might have helped their case, either by showing Abu Zubaydah did not know their client or that anything incriminating he may have said resulted from harsh treatment.

The remaining tapes of Mr. Marri, the prisoner at the Charleston brig who is challenging his indefinite detention, could create legal headaches for Justice Department lawyers should they someday bring him to trial.

During any future trial, Mr. Marri's lawyers could show a jury interrogation tapes showing that he had been treated roughly. In addition, they could exploit the Pentagon's admission that it has destroyed some tapes of Mr. Marri's interrogation to make the case that the government withheld evidence from the defense.

Despite all the legal complications, those in the C.I.A. who got rid of the videotapes may have achieved one of their presumed goals: preventing a torture prosecution, said Deborah Colson, a senior associate at Human Rights First.

"It may be impossible to reconstruct any criminal conduct that was caught on the tapes," Ms. Colson said.

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